It Was Probably Too Soon To Open Bars. It's Too Soon To Open Bar Exams.

I graduated from Marquette University Law School and aside from a couple of federal court admissions, I practice exclusively in Wisconsin. (I’ve applied to Illinois, but that’s still pending; I guess I’ll need to update my blog tagline eventually..)

Wisconsin is the only state in the country to offer diploma privilege to graduates of its law schools (though New Hampshire has a limited honors-style program)—that means, by virtue of graduating here, we get to practice here without a bar exam. We did have to undergo character and fitness, but once we were certified and graduated, we were sworn in and thrown into the deep end. New graduates admitted with diploma privilege have the same license as those admitted on exam or proof of practice elsewhere, without any supervision requirements.

I had to take the LSAT to get into law school (which I took in a lecture hall at UW-Milwaukee in 2005, with a kid shaking in the lotus position next to me and jackhammering outside) . To apply for Illinois, I had to take the Multistate Professional Responsibility Examination , which I did on a computer at a Pearson testing center in the building where I used to work, with my neighbor as the proctor. I wasn’t particularly nervous about the MPRE—I took it to apply for my second bar, after more than a decade of law practice, including several years of professional responsibility practice, so failing would have been really, really embarrassing (really embarrassing) but not horribly detrimental to my career. Still, I made sure I had comfortable clothes with no itchy tags, had used the restroom immediately before walking into the test center, and otherwise had as much control over my testing circumstances as possible.

But I’ve never taken a full bar exam, and neither have many, or even most, of the people I practice with and near, as they’re University of Wisconsin or Marquette Law graduates themselves. Unless I know where they graduated from, however, I really have no idea who among my colleagues and my counterparts has taken a bar exam, Wisconsin or otherwise—the bar exam doesn’t test trial or research skills, or whether someone is going to hit “reply all” when they meant “reply,” and I don’t interact with too many people when they have to discuss failure of consideration from rote.

Three years ago, aspiring 1Ls at the other 235 or so law schools in the United States started their first year and assumed they’d be sitting for the bar exam this summer, in person, in a stuffy hotel ballroom (Virginia test-takers in full court dress, no really).

Now, those same new graduates are wondering what, if anything, is going to happen, given that we are still in the middle of a raging pandemic and putting hundreds of panting, coughing, sweaty people in a room together, even six feet apart, is the opposite of social distancing.

This is a situation in flux—depending on where you’re registered to take the bar exam, it may be live without too many changes; live with many changes; online; postponed to fall; or, not at all. Some states are allowing emergency diploma privilege, usually under supervision of a licensed lawyer (which does throw a wrench into the plans of folks intending to hang up their shingle right away). But some states very much are not, and the ones who are pressing forward with an in-person exam in July have test takers understandably freaking out.

Some states are asking their examinees to sign waivers assuming the risk of catching a deadly virus while taking the bar exam. Some are taking temperatures (even though that’s an iffy proxy at best for infection), which means that anyone with a fever, no matter the cause, gets turned away and their months of studying and thousands of dollars go to waste. Some states have instituted general quarantines for travelers from certain areas, which raises the question of whether test-takers will needs to spring for two weeks in a hotel before the bar exam. (So far, it looks like the states with quarantines have postponed their exams until fall, so the situation may or may not work itself out by then.) Some jurisdictions are requiring masks at the site, but making them optional during the test itself. Twitter is full of threads of scared law students with pre-existing conditions or vulnerable family members who are not getting appropriate accommodations, or who have no idea whether they need to be studying for a July exam or should start studying later for a September exam or whether their remote bar exams will be transferable to another jurisdiction. (Alyssa Leader is doing a good job of curating and boosting these threads, as well as pressing state bar examiners to do something other than what they’re doing.)

Wisconsin is forging ahead for its out-of-state grads who want to practice here, after denying a petition by Minnesota graduates. The section of the Supreme Court website pertaining to COVID-19 orders simply says “The July 2020 Wisconsin Bar Exam will proceed as scheduled. Updates will be posted here when available.” There were no updates unrelated to the petition as of this post.

And, at the rate things are going, some states may be back on lockdown by July, which means that conditions and even administration of the test is up in the air. The bar exam has been criticized as an outdated hazing ritual by some, but this is hazing to the extreme.

Even assuming the test goes forward and you’re healthy enough to take it, how on earth are you supposed to focus? I wasn’t nervous about the MPRE (spoiler alert: I passed) but I still wanted control and got annoyed when someone sneezed in the room that sat maybe 25 people. Add in everyone’s recently acquired knowledge of how far respiratory droplets can travel and hundreds of jittery test-takers and it’s an anxiety-producing hellscape. (Technical term.)

Postponement, as some states have done, is one potential remedy, but the same problems that are present for July could repeat in September, and this also delays some graduates’ entrance into the workforce. (Granted, now is not a great time to be entering the legal workforce, but there are offers out there that have not been rescinded or deferred, at least not yet).

As someone who has never sat for a bar exam, I am not coming at this from the position of “we had to do it so everyone else should,” but emergency diploma privilege—even limited or temporary—seems like the humane solution here. The ABA is clamoring for creative solutions, including some limited diploma privilege. Students are sounding the alarm, and are arguing for diploma privilege. The only people who seem to want to press forth with bar exams in a pandemic are some of the regulators, and, um, the people who make the test.

That bar exams in general may serve yet another antiquated gatekeeping function that disproportionately keeps students of color, first-generation law students, and others with underrepresented backgrounds out of the law profession and drives costs up and access to justice down for the general public is a topic for another day. But for now, why is a bar exam in the middle of a pandemic necessary? I’ve rapidly come to the conclusion that it’s not.